The appearance of the product itself or of the packaging of a product is protectable as a three-dimensional trade mark.
Some criteria of examination of the three-dimensional trade mark that consist of the appearance of the product itself are the same as for other categories of trade marks. However, it may be more difficult to come to a finding of distinctiveness. In general, a three-dimensional trade mark that consist of the appearance of the product itself can only be regarded as sufficiently distinctive if the shape departs significantly from the norm or customs of the sector and can thus be perceived as an indication of origin of the goods and/or services.
Additionally, in order to obtain protection, a form/shape must meet the following legal requirements:
- the form/shape must not be necessary to achieve a technical result;
- the form should not be imposed by the nature or the function of the product itself (e.g. the shape of a football for a football);
- the form should not give substantial value to the product (shapes which exclusively realise an aesthetic function, such as the shape of an object of art for objects of art).